5.  The applicant was born in 1952 and is currently being held in the psychiatric wing of Louvain Prison (Belgium).
6.  He was first committed on 4 April 1978 for the repeated rape of his under-age sisters between 1973 and 1977, after the Louvain Criminal Court had found in a judgment of 2 February 1978 that he was not criminally responsible for his actions. He was released on 24 April 1978 subject to the condition that he be taken to hospital and treated by a psychiatrist, Dr V., who had found on 27 April 1977 that the applicant had severe mental disabilities.
7.  On 20 August 1982 the applicant was again detained and placed under observation in Merksplas Prison by order of the public prosecutor, for sexually assaulting a child.
8.  On 7 March 1983 the Louvain Mental Health Board (commissie tot bescherming van de maatschappij; commission de défense sociale) decided that it was necessary to transfer the applicant to the Bierbeek private psychiatric clinic. However, owing to his aggressive behaviour and a further sexual assault, he was returned to the psychiatric wing of Merksplas Prison in October 1984.
9.  The Mental Health Board regularly reviewed the situation in order to find a suitable psychiatric establishment and, on 2 December 1985, decided to release the applicant on a trial basis into the care of the Dr Guislain private psychiatric institute in Ghent.
10.  On 4 May 1987 the Mental Health Board authorised the applicant to live alone provided that he went to hospital every day for treatment.
11.  On 12 June 1987 the applicant was again arrested for indecent assault on a young girl and was placed in the psychiatric wing of Turnhout Prison, where he remained until September 1989, when he was released on condition that he had himself admitted to a psychiatric hospital.
12.  In 1994, following several incidents involving young girls and female staff in the psychiatric hospital, and several psychologists’ reports describing him as a manipulative and potentially dangerous individual who was not capable of living in society, the Mental Health Board, referring to the Criminal Court’s judgment of 2 February 1978, ordered the applicant’s return to the psychiatric wing of Merksplas Prison.
13.  In 1998 a number of non-prison psychiatric institutions were approached with a view to the applicant’s admission, but to no avail.
14.  Intelligence tests carried out on the applicant in 1998 revealed that he had an IQ of 72 and he was classified as “mentally disabled”.
15.  Between 1999 and 2001 the applicant had six consultations with five different prison psychiatrists.
16.  Several opinions issued by the prison’s mental welfare office between 2002 and 2004 documented the ongoing unsuccessful search for a suitable residential institution for the applicant. A report drawn up by the psychologist R. in July 2004 reached the following conclusion:
“The subject was placed in detention for sexual offences. He is considered to be a dull-witted man with an immature personality. We are continuing to look for a residential institution prepared to take him. The idea is that a stay in a structured establishment greatly reduces the risk of reoffending. Unfortunately, finding such an establishment is no easy matter. ... For the time being we have found him a place on the waiting list for Borgenstein [private care home for people with disabilities]. This state of affairs cannot go on much longer, however.”
17.  From 2002 to 2004 the applicant saw a prison psychiatrist about once a month on average. These consultations were with six different psychiatrists.
18.  In an opinion of 5 September 2005 the prison mental welfare office noted an improvement in the applicant’s behaviour, his adjustment within his unit, and the prospect of his rehabilitation.
19.  On 12 September 2005 the Mental Health Board extended the applicant’s detention in Merksplas until he could be placed in the care of the Flemish system for social integration of people with disabilities.
20.  In 2005 and 2006 the applicant had one consultation a month on average with a prison psychiatrist. In all, he saw four different psychiatrists.
21.  On 18 December 2007, complaining of the poor standard of care in prison psychiatric wings and the unsuitability of the prison environment for persons with mental disabilities and alleging a violation of Articles 3 and 5 of the Convention on that account, the applicant applied to the President of the Turnhout Court of First Instance for an injunction ordering the Belgian State authorities to find him a place in a suitable institution, in keeping with the decision of the Mental Health Board, subject to a penalty in the event of non-compliance.
22.  In an opinion of 27 December 2007 Dr G. of Merksplas Prison stated:
“The subject is dull-witted and has behavioural problems that have not changed much over the years. There is little prospect of rehabilitation for this patient, who would really like to find an outside care solution but has made little progress (unrealistic hopes and plans), which creates difficulties and increases the subject’s suffering as he feels misunderstood and does not really understand the situation ... Minimal comprehension of the problem and the illness after so many years.”
23.  During 2007 the applicant saw the prison psychiatrist once a month on average. The consultations were all with the same psychiatrist.
24.  On 14 January and 7 July 2008 the Mental Health Board confirmed the applicant’s detention in Merksplas in the same terms as in its decision of 12 September 2005. The second decision was upheld by the Higher Mental Health Board (Hoge commissie tot bescherming van de maatschappij; Commission supérieure de défense sociale) on 7 August 2008 (see paragraph 29 below).
25.  On 14 February 2008 the applicant again applied for an injunction against the Belgian State.
26.  On 5 June 2008 the President of the Turnhout Court of First Instance, sitting as the urgent applications judge, dismissed both applications. Pointing out that the urgent applications judge had the power to intervene in the event of an apparently wrongful interference with a detainee’s personal rights, he considered that in this case the applicant was seeking to oblige the opposing party to place him in a suitable institution. That power, however, lay within the exclusive remit of the Mental Health Board and as no such establishment had yet been designated, the urgent applications judge had no say in the matter.
27.  According to the prison psychologist’s report of 27 June 2008:
 “The subject has been very abrupt of late in his dealings with the mental welfare office ...
Contact is characterised by great resignation. The subject’s suffering seems to be growing worse. The failure to find an institution to take him in is a source of considerable frustration and tension for the subject, expressed in more rigid and reserved behaviour in the project for mentally disabled people. The subject seems ready to go to any lengths to bring about his placement.
The subject must be rehabilitated in the care of the Flemish agency for people with disabilities, and more specifically in a home for people unfit to work. His behavioural problems require intensive and specific care. This does not make him popular in the sector. Thus far no institution has been willing to take him in. There is a slight possibility that he might be able to join the Limes project for people with intellectual deficiencies.”
28.  On 3 July 2008, at the request of another patient in the same block as the applicant, a visit to the psychiatric wing of Merksplas Prison was organised by the Ghent Mental Health Board. The report on the visit noted that the applicant spent his days in the communal areas, where social workers from the “‘t Zwart Goor” association accompanied the detainees who suffered from mental deficiencies; at night he shared a dormitory with twenty-four other people, and the conditions of sanitation were unsatisfactory.
29.  The applicant lodged an appeal with the Higher Mental Health Board against the Mental Health Board’s decision of 7 July 2008. The appeal was rejected on 7 August 2008 because the prospects of the applicant’s rehabilitation were insufficient and because of the danger he represented for society. On 21 October 2008 the Court of Cassation dismissed an appeal on points of law by the applicant against the decision of the Higher Mental Health Board, for failure to substantiate his appeal.
30.  In October 2008 the applicant appealed against the decision of 5 June 2008 by the President of the Turnhout Court of First Instance. After explaining his situation and detailing the decisions of the Mental Health Board, the psychological reports and the Court’s case-law on Article 5 § 1 (e) and Article 3 of the Convention, the applicant asked the Court of Appeal to order a visit of the premises at Merksplas Prison. He also requested that witnesses be interviewed, to enable him to demonstrate that the infrastructure and care in the F block of Merksplas Prison were insufficient for his rehabilitation and treatment. Lastly, he requested that a place be made available to him, in conformity with the decisions of the Mental Health Board, in an institution of the Flemish system for social reintegration of people with disabilities.
31.  In the course of 2008 the applicant saw a prison psychiatrist on six occasions. The consultations were with two different psychiatrists.
32.  On 5 January 2009 the prison governor noted in a report that the applicant now had priority status in the care system for people with disabilities. This meant that the necessary financial resources had been set aside to facilitate the applicant’s placement in residential care.
33.  On 2 March 2009 the Mental Health Board rejected a further request for release by the applicant, who had relied on Articles 3 and 5 of the Convention. It confirmed that he should remain in detention, noting that the staff in the psychiatric wing of Merksplas Prison were doing their best to improve his living conditions and that the aim was above all to protect society as a whole and children in particular from the risk of sexual abuse. It confirmed that the applicant’s trial release was conditional on his being found a place in a secure psychiatric facility under the close supervision of therapists with experience in the treatment of sex offenders. It added, however, that it did not have the power to order the authorities to make a suitable place available to the applicant. It also refused the applicant’s request to visit the facility to which he would be admitted. Concerning his Convention complaints, it noted as follows:
“The detention of André Claes in the psychiatric wing ... can on no account be regarded as torture or inhuman or degrading treatment or punishment within the meaning of Article 3 of the ECHR. There is certainly no such intention. The management, the therapists and everyone concerned want only to improve his living conditions and to assist and accompany him to the greatest extent possible.
...
André Claes has the right to treatment, as a detainee, but the Mental Health Board has not denied him that right. It does not dispute the fact that the treatment is not always sufficient, but that does not mean that his deprivation of liberty is not lawful within the meaning of Article 5 § 4 of the ECHR or that the law is unconstitutional. The deprivation of liberty remains authorised under Article 5 § 1 (e) and Articles 3 and 8 of the ECHR. The Board acknowledges the right to treatment but that does not mean that it has any legal power to order treatment or to oblige the institutions to provide it. Detention without treatment might amount to a violation of Article 3, in conjunction with Article 5, of the ECHR but the solution cannot and must not be the patient’s release because of the threat to the physical and sexual integrity of others ...”
34.  On 26 March 2009 the Higher Mental Health Board rejected an appeal by the applicant against the Mental Health Board’s decision. The applicant had complained that the psychiatric wing was unsuitable and, referring to the Court’s case-law, had asked the appellate body to order his transfer.
35.  On 2 June 2009 the Court of Cassation dismissed an appeal on points of law by the applicant against the decision of the Higher Mental Health Board, holding that a decision concerning the transfer of a patient detained in a psychiatric institution was a measure relating to the manner of detention, against which no appeal was possible before the Court of Cassation.
36.  In the meantime, in a judgment of 15 April 2009, the Antwerp Court of Appeal had confirmed that the urgent applications judge had no jurisdiction to deal with the applicant’s request to find a suitable institution for him as that would be incompatible with sections 14 and 15 of the Social Protection Act, under which the Mental Health Boards had exclusive powers regarding the place of detention. It accordingly dismissed an appeal by the applicant against the above-mentioned decision of the Court of First Instance of 5 June 2008.
37.  According to the Government, the applicant was placed in the new “De Haven” unit inaugurated in Merksplas Prison in June 2009 (see paragraph 56 below). The applicant, however, alleged that he had remained in the F block which the Ghent Mental Health Board had visited in 2008 (see paragraph 28 above).
38.  During the first half of 2009 the applicant had two consultations with the prison psychiatrist.
39.  On 10 September 2009 the Mental Health Board decided that the applicant should be released on a trial basis; he was transferred to the Martine van Camp Centre, an association providing services to people with mental disabilities.
40.  In January 2010 the applicant lodged an appeal on points of law against the Antwerp Court of Appeal’s judgment of 15 April 2009. He alleged, inter alia, that there had been a violation of Article 5 § 1 (e) and Article 3 of the Convention because of the length of his wait for an available place in an institution in the Flemish system for social reintegration of people with disabilities, and the years he had spent in Merksplas as a result. In their memorial submitted in April 2010 the Belgian Government put forward arguments concerning the lack of jurisdiction of the ordinary courts and the exclusive authority of the mental health authorities to decide on the place of psychiatric detention. According to the information in the case file, that appeal is still pending.
41.  In June 2011 the Mental Health Board informed the public prosecutor that the safety of the residents and staff at the Martine van Camp Centre could no longer be guaranteed as a result of the applicant’s aggressive behaviour, following which the applicant was arrested and placed in the psychiatric wing of Louvain Prison.
II.  RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE
... 56.  There are four such establishments in Belgium, run by the prison authorities or attached to the Ministry of Justice. Three are located in Wallonia: the Paifve centre, which can house 208 detainees; the “Les Marronniers” secure psychiatric hospital in Tournai, which can house 376 detainees; and the social protection unit of the “Chêne aux Haies” psychiatric hospital in Mons, with thirty beds for female detainees. In 2009 Merksplas Prison in Flanders opened the “De Haven” secure treatment unit, which can house sixty people, for patients with mental disabilities. The 2009 activity report of the Prisons Directorate described the unit in these terms:
“Inside the unit the principle of secure treatment is present in even the smallest details. The aim is to provide suitable treatment in a secure environment. The two aspects – treatment and security – are equally important and inextricably linked. The goal is to offer treatment and rest to a vulnerable population in a safe environment, as well as prospects of personal fulfilment and development.” 57.  In 2006, as part of the Ministry of Justice’s 2005 multiannual justice plan, it was decided to develop the forensic psychiatry system in Flanders by building two high-security forensic psychiatry centres in Ghent and Antwerp, with a total capacity of 390 places. These facilities should be operational in 2015. 58.  These are either subsidised private psychiatric hospitals or public establishments. Some of them are classified as “medium security” and can take in patients who, because they are a danger to others, may be regarded as having serious behavioural problems and/or as being very aggressive, and hence requiring special security measures. Other institutions are classified as “low security” and cater for patients who are not considered dangerous and whose psychiatric disorders are comparable to those of most patients in general psychiatric hospitals. 59.  Twelve prisons have psychiatric wings – also called “social protection units” – originally designed for keeping patients under observation while in temporary detention pending their transfer to a social protection facility. 60.  According to a document entitled “Prison policy and execution of sentences – overview and development”, published by the Ministry of Justice in March 2010, the number of patients detained in prison psychiatric wings in 2010 totalled 1,094, or about 10% of the prison population, compared with 790 in 1992. According to the 2010 activity report of the Prisons Directorate, 625 psychiatric detainees were being held in Merksplas Prison.
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